"One of the exhibits Samsung has now made public tells an interesting tale. It's the slide presentation that Apple showed Samsung when it first tried (and failed) to get Samsung to license Apple's patents prior to the start of litigation. While some of the numbers were earlier reported on when the exhibit was used at trial, the slides themselves provide more data - specifically on the difference between what Apple wanted Samsung to pay for Windows phones and for Android phones. The slides punch huge holes in Apple's FRAND arguments. Apple and Microsoft complain to regulators about FRAND rates being excessive and oppressive at approximately $6 per unit, or 2.4%; but the Apple offer was not only at a much higher rate, it targeted Android in a way that seems deliberately designed to destroy its ability to compete in the marketplace." Eagerly awaiting the 45 paragraph comment explaining how this is completely fair and not hypocritical at all. Bonus points if it includes something about Eric Schmidt being on Apple's board, and, double bonus point if it mentions one of the QWERTY Android prototypes. Mega Epic Bonus if it somehow manages to draw a line from Edison, Tesla, to Jobs.

oskeladden, it occurs to me that you might be a patent lawyer yourself, are you? If so, no offence to you personally, I just liked the software field better before the lawyers got heavily involved

Well, in a sense - 'real' patent lawyers tend to be scientists (or, at any rate, have degrees in science), but I did work with patents and IP generally. I haven't been in practice for around 12 years, though - I entered academia around the turn of the century.

I was a programmer before I became a lawyer, so I understand the issues involved. My personal view is that patents aren't really suitable for software - software needs sui generis protection, somewhat like plant varieties have. The real difficulty, though, is that it can be very hard to distinguish between software and hardware when you start thinking of embedded systems and even instructions hard-coded in printed circuit boards. That was how patent protection for coded computer instructions got started.

By itself, software patents actually wouldn't have been a disaster (indeed, the EPO hands them out quite frequently without causing the same level of problems that the USPTO does). The real problem came from the fact that the US Supreme Court decided that patents should be allowed on 'methods', because those could be inventions too. The result was that patents suddenly became available on any method implemented by a computer program, with the results we see today. I'm not sure where the law will go from here, because software patents are now so entrenched that it'll be hard to root them out, but as the ongoing litigation shows the system really is completely broken.

"I was a programmer before I became a lawyer, so I understand the issues involved. My personal view is that patents aren't really suitable for software - software needs sui generis protection, somewhat like plant varieties have."

Probably not a bad move if you enjoy law, software's been going downhill with all the corporate restructuring and significant offshoring. My career is hurting since few local businesses are seeking my specialised CS skills, I've transformed myself into more generic positions with more work, but at significantly lower wages...not to cry a river though.

"The real difficulty, though, is that it can be very hard to distinguish between software and hardware when you start thinking of embedded systems and even instructions hard-coded in printed circuit boards. That was how patent protection for coded computer instructions got started."

Well, should "software" be patentable when it's implemented as hardware and sold as a IC/hardware? Good question! But should software be patentable when it is being written by software developers to run on a generic processor? I think not. Isn't that a simple & effective distinction? At least the patent situation would be pretty clear-cut for software developers who'd be free to develop software running on commodity processors.

I suppose some hardware developers will be peeved that that'd have to pay into patent licenses to use the same algorithms that software developers get to use independently...but at least then the patent debate would be pushed back to the hardware level instead of at the software level where it is today.

"...I'm not sure where the law will go from here, because software patents are now so entrenched that it'll be hard to root them out, but as the ongoing litigation shows the system really is completely broken."

Exactly, this situation could have been easily averted BEFORE businesses got wound up in it. But now, these patent deals are worth billions if not trillions in fees. Patent holders must be terrified at the prospect of governments nullifying software patent monopolies.

Even so, we might make a clean break from the past by ceasing the issuance of *future* software patents. There's a good chance this would dramatically increase the value (and litigation) of existing software patents, but after a while we'd return to having normal market incentives for developers to add features to their products.

The real problem is that the federal government is not independent from the corporations that it oversees. The same players that allowed the patent system to become what it is are still at the helm today.